AMENDED AND RESTATED AGENCY AGREEMENT
XXXXXXX XXXXX XXXXXX ORION FUTURES FUND L.P.
(A NEW YORK LIMITED PARTNERSHIP)
UNITS OF LIMITED PARTNERSHIP INTEREST
April 1, 2001
Xxxxxxx Xxxxx Barney Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Xxxxxxx Xxxxx Xxxxxx Orion Futures Fund L.P.
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Gentlemen:
Xxxxxxx Xxxxx Barney Orion Futures Fund L.P. (the "Partnership") was
organized as a limited partnership under the New York Revised Uniform Limited
Partnership Act, as amended (the "Partnership Act") for the purpose of
speculative trading in commodity interests including futures contracts, options,
spot and forward contracts. Xxxxx Xxxxxx Futures Management LLC ("SBFM" or the
"General Partner") has been elected general partner of the Partnership and SFG
Global Investments, Inc. has withdrawn as general partner of the Partnership,
effective as of the date hereof. You, the Partnership, SFG Global Investments,
Inc. and a predecessor of the General Partner entered into an agency agreement
dated March 31, 1999 (the "Initial Agency Agreement"). This Amended and Restated
Agency Agreement (the "Agreement") supersedes the Initial Agency Agreement in
all respects.
The General Partner desires to raise capital for the Partnership by the
sale of units of limited partnership interest therein (the "Units") to certain
qualified investors pursuant to Rule 506 of Regulation D ("Reg. D") under
section 4(2) of the Securities Act of 1933, as amended (the "Securities Act").
The General Partner, the Partnership, the business of the Partnership and the
Units are described in a Private Placement Offering Memorandum and Disclosure
Document dated December 31, 2000, prepared by the General Partner. As used in
this Agreement, "Memorandum" refers to that Private Placement Offering
Memorandum and Disclosure Document, including the appendices thereto, unless
such memorandum or appendices have been supplemented or amended, in which case
the term shall refer, from and after the time the supplement or amendment is
delivered to you, to the memorandum and appendices as so amended and
supplemented. The commodity trading advisors to the Partnership are currently
AAA Capital Management, Inc., Beacon Management Corporation (USA) and
Willowbridge Associates Inc. (the "Advisors").
The subscribers for Units will be required to execute the Subscription
Agreement, a copy of which is attached as an appendix to the Memorandum, and to
tender or cause to be tendered for each Unit subscribed cash in the amount of
the Net Asset Value per Unit on the date of purchase. Subscribers for Units
whose Subscription Agreements are accepted by the General Partner will become
limited partners of the Partnership (the "Limited Partners") upon the execution
by the General Partner as attorney-in-fact for each such subscriber of the
Amended and Restated Limited Partnership Agreement, a copy of which is attached
as an appendix to the Memorandum (the "Partnership Agreement"), and at the time
such subscribers' names are entered in the books and records of the Partnership.
Section 1. Appointment of Agent.
On the basis of the representations, warranties and covenants contained in this
Agreement, but subject to the terms and conditions set forth in it, you are
hereby appointed the exclusive agent of the Partnership during the offering
period specified in this Section, for the purpose of finding subscribers for the
Units for the account and risk of the Partnership through a private offering.
The offering period will continue until the General Partner terminates it (the
"Continuous Offering"). Units or partial Units sold during the Continuous
Offering will be sold at Net Asset Value per Unit as of the last day of each
month, provided that the General Partner may determine to offer no Units in a
particular month. Subject to the performance by the General Partner of all of
its obligations to be performed under this Agreement and to the completeness and
accuracy of all material representations and warranties of the General Partner
contained in this Agreement, you hereby accept such agency and agree on the
terms and conditions set forth in this Agreement to use commercially reasonable
efforts during the Continuous Offering to find subscribers for the Units. Your
agency under this Agreement, which is coupled with an interest and, therefore,
is not terminable by the General Partner without your permission, will continue
until the termination of the Continuous Offering.
Section 2. Representations and Warranties of the Partnership and the General
Partner.
(a) The Partnership and the General Partner jointly and severally represent
and warrant to you, for your benefit, and for the benefit of the purchasers of
the Units that:
(i) They will deliver to you such number of copies of the Memorandum as you
may reasonably request, regardless of whether the Units are offered solely to
"accredited investors" as defined in Rule 501(a) of Reg. D. They will not make
any amendment or supplement to the Memorandum until they have given you a copy
thereof and reasonable notice of the same, and no such amendment or supplement
will be made if you reasonably object thereto.
(ii) The Memorandum complies with Rule 502(b)(2) of Reg. D and the
information to be made available or furnished to each purchaser of a Unit
pursuant to Section 5(f) hereof or otherwise will be sufficient to comply with
Rule 502(b)(2)(iv) and 502(b)(2)(v) of Reg. D.
(iii) The Memorandum will not contain any untrue statement of a material
fact or omit to state a material fact necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading.
(iv) All action required under the Partnership Agreement or otherwise to be
taken by the General Partner before the subscription for and sale of the Units
to subscribers therefor has been taken or before the Monthly Closing (defined
below) dates, as defined in Section 4 hereof, will have been taken, and upon (i)
payment of the consideration therefor specified in the Subscription Agreement,
(ii) acceptance by the General Partner of each subscriber acceptable to the
General Partner, and (iii) the payment of any required filing fee, the
subscribers will become Limited Partners of the Partnership entitled to all the
rights of Limited Partners under the Partnership Agreement and the Partnership
Act. The Units, when sold and paid for as contemplated by the Memorandum, will
represent validly authorized and duly issued limited partnership interests in
the Partnership and will conform to all statements relating thereto contained in
the Memorandum, including the Partnership Agreement.
(v) The Partnership is a limited partnership duly and validly organized
pursuant to the Partnership Agreement and the laws of New York, and is validly
existing under, and subject to, the laws of New York with full power and
authority to conduct the business in which it proposes to engage as described in
the Memorandum. A Limited Partner will have no liability in excess of his
capital contribution and his share of Partnership assets and undistributed
profits except as set forth in Section 7(f)(2) of the Partnership Agreement and
in the Partnership Act.
(vi) There is no action, suit, litigation or proceeding before or by any
court or governmental agency, federal, state or local, pending or threatened
against or affecting or involving the property or business of the or the General
Partner, or the business of the Partnership, that would materially and adversely
affect the condition (financial or otherwise), business or prospects of the
General Partner or the Partnership.
(vii) Neither the Partnership, the General Partner nor any person directly
or indirectly affiliated with any of them has, either directly or through an
agent, sold or offered for sale or solicited offers to subscribe for or buy, or
approached potential investors for or otherwise negotiated in respect of, the
Units except for the activities of the General Partner in approaching potential
investors undertaken in cooperation with you after advance consultation with
you; and neither the Partnership, the General Partner nor any person directly or
indirectly affiliated with any of them has, either directly or through an agent,
participated in the organization or management of any partnership or other
entity, or has engaged in any other activity, in a manner or under circumstances
that would jeopardize the status of the offering of the Units as an exempted
transaction under the Securities Act or under the laws of any state in which it
is represented by the General Partner that the offering may be made.
(viii) This Agreement and the Partnership Agreement have been duly and
validly authorized, executed and delivered by and on behalf of the General
Partner and constitute valid and binding agreements of the General Partner
enforceable in accordance with their terms. This Agreement and the Subscription
Agreements have been or will be duly and validly authorized, executed and
delivered by and on behalf of the Partnership and constitute or will constitute
valid and binding agreements of the Partnership enforceable in accordance with
their terms.
(ix) The execution and delivery of this Agreement, the Subscription
Agreements and the Partnership Agreement, and the consummation of the
transactions contemplated in this Agreement and in the Memorandum, do not
conflict with and will not constitute a breach of, or default under, the
articles of incorporation or by-laws of the General Partner or any agreement or
instrument by which either the General Partner is bound by any order, rule or
regulation applicable to it of any court or any governmental body or
administrative agency having jurisdiction over it.
(x) A separate escrow account has been opened at European American Bank,
New York, New York (the "Escrow Agent") and will be maintained for all funds
received from subscribers for Units. All payments received from persons desiring
to purchase Units will be deposited in such account and held in accordance with
the terms of the Escrow Agreement entered into with the Escrow Agent.
Section 3. Your Representations and Warranties.
You represent and warrant to and for the benefit of the Partnership and the
General Partner that:
(a) You will not offer or sell the Units by any form of general
solicitation or general advertising within the meaning of Rule 502(c) of Reg. D.
(b) Where required by applicable state law or regulation, you will initiate
contact with a prospective offeree only after determining that the suitability
and sophistication standards described in the Memorandum are likely to be
satisfied with respect to such prospective offeree and, where applicable, only
after having obtained an executed Purchaser Representative Questionnaire.
(c) You will not offer the Units for sale to, or solicit any offers to
subscribe for the Units from, any offeree who resides in a state whose
securities or "blue sky" laws require offerees to meet specified qualifications
unless such offeree meets such qualifications or which laws require offerees to
receive disclosure documents until you have delivered (or directed the General
Partner to deliver) the Memorandum, the Partnership Agreement, and any other
agreement or document that may be attached as an exhibit or appendix referred to
in and distributed with the Memorandum or any other information provided by the
General Partner which is required to be delivered to purchasers pursuant to Rule
502(b)(2) of Reg. D to such offeree, and within a reasonable time prior to the
Monthly Closing you shall deliver (or cause the General Partner to deliver) all
such documents to all persons who are to purchase the Units, to the extent they
have not theretofore received such documents. In connection with the offering,
you will not represent to any person acquiring Units any material facts relating
to the offering unless such facts are contained in the Memorandum or have been
provided to you in writing by the General Partner.
(d) You will make offers to sell Units to, or solicit offers to subscribe
for Units from, persons in only those states or other jurisdictions where the
General Partner has either qualified or registered the offering for sale or
where the General Partner has determined that an exemption from such
qualification or registration is available under the applicable securities or
"blue sky" statutes of such states or other jurisdictions. You will not sell
Units to any person unless, immediately before making such sales, you reasonably
believe such person (i) would be able to represent that such person is acquiring
the Units for such person's own account as principal for investment and not with
a view to resale or distribution, (ii) qualifies as an accredited investor under
Rule 501 of Reg. D and (iii) meets such other suitability standards as are
specified in the Memorandum under the caption "Who May Invest" and the other
conditions contained in the Subscription Agreement.
(e) You will maintain a record of all information obtained by you
indicating that subscribers for Units meet the suitability standards referred to
in Section 3(d) hereof. The General Partner will approve or reject the
subscriptions and notify you of the same.
(f) You are a member in good standing of NASD, Inc.
Section 4. Closings.
During the Continuous Offering, closings may be held as of the
last business day of each month ("Monthly Closings").
Section 5. Covenants of the Partnership and the General Partner.
The Partnership and the General Partner covenant with you that:
(a) If any event occurs before a Monthly Closing and relates to or affects
the business or condition (financial or other) of the General Partner or the
Partnership which makes it necessary to amend or supplement the Memorandum in
order that the Memorandum will not contain an untrue statement of a material
fact or omit to state a material fact necessary in order to make the statements
therein not misleading in the light of the circumstances existing at the time it
is delivered to a subscriber, the General Partner forthwith will prepare and
furnish to you a reasonable number of copies of the amendment or amendments of,
or supplement or supplements to, the Memorandum (in form and substance
satisfactory to you and your counsel) that will so amend or supplement the
Memorandum.
(b) They will qualify or register the Units for offering and sale under, or
establish the exemption of the offering and sale of the Units from qualification
or registration under, the applicable securities or "blue sky" laws of the
jurisdictions listed in Appendix I hereto and use reasonable efforts to qualify
in such other jurisdictions as you may reasonably request in writing; provided,
however, that none of them will be obligated to qualify as a dealer in
securities in any jurisdiction in which it is not so qualified. The General
Partner will promptly notify you in writing of such qualification, registration
or exemption in each such jurisdiction and of any modification, rescission or
withdrawal of any such qualification, registration or exemption. The General
Partner will not consummate a sale of a Unit in any jurisdiction in which such
sale may not be lawfully made and will not consummate any sale otherwise than in
accordance with the restrictions and limitations, if any, set forth or referred
to in such survey.
(c) Neither they nor any of their affiliates will, either directly or
through an agent (other than you), sell or offer for sale, or solicit offers to
subscribe for or buy or approach potential offerees for, or otherwise negotiate
in respect of, the Units except for the activities of the General Partner in
approaching potential offerees undertaken in cooperation with you after advance
consultation with you.
(d) The Partnership will apply the proceeds from the sale of the Units for
the purposes set forth under "Use of Proceeds" in the Memorandum in
substantially the amounts and at the times indicated thereunder.
(e) Neither they nor any person directly or indirectly affiliated with any
of them is or will be engaged, as a general partner, sponsor or otherwise (i) in
the organization or management of any partnership, fund or other entity, in a
manner or under circumstances which, in the opinion of their counsel, will
jeopardize the status of the offering of the Units as an exempted transaction
under the Securities Act or under the laws of any state in which it is
represented by them that the offering may be made, or (ii) in any offering of
securities which, when integrated with the offering of the Units in the manner
prescribed by Rule 501(a) of Reg. D and SEC Release No. 33-4552 (Nov. 9, 1962)
will jeopardize the status of the offering of the Units as an exempted
transaction under Reg. D.
(f) At all times during the Continuous Offering and before each Monthly
Closing, they will (i) make available to each potential purchaser and to the
purchaser's representative, if any, such information (in addition to that
contained in the Memorandum) concerning themselves, the offering and any other
relevant matters, as they possess or can acquire without unreasonable effort or
expense, and (ii) provide to each potential purchaser and to any purchaser
representatives the opportunity to ask questions of, and receive answers from,
them concerning the terms and conditions of the offering and the business of the
Partnership and to obtain any other additional information, to the extent they
possess the same or can acquire it without unreasonable effort or expense,
necessary to verify the accuracy of the information furnished to the potential
purchaser or any purchaser representatives.
(g) Before each Monthly Closing, they will provide to each purchaser the
information required to be delivered by Rule 502(b)(2)(iii) and 502(b)(iv).
(h) Within fifteen (15) days of receiving from you copies of information
indicating that subscribers meet the suitability standards, the General Partner
will approve or reject the subscriptions and notify you of the same.
(i) The General Partner has filed five (5) copies of a notice on Form D
with the Securities and Exchange Commission no later than fifteen (15) days
after the first sale of a Unit pursuant to Rule 503 under Reg. D. The General
Partner shall comply with any filing requirement imposed by the laws of any
state or jurisdiction in which sales are made. The General Partner shall furnish
you and your counsel with copies of all filings made on Form D pursuant hereto.
Section 6. Payment of Expenses, Fees and Interest Income.
You will initially pay all expenses of the Partnership's organization and
the offering of Units. Such expenses will include, but not be limited to, fees
and disbursements of counsel for the Partnership, including reasonable fees and
disbursements of counsel incurred in connection with the qualification or
registration of the Units under, or establishment of the exemption of the
offering from registration under, the securities or "blue sky" laws of the
jurisdictions designated by you; expenses incurred in the preparation, printing
or photocopying and delivery to you of such number of copies of the Partnership
Agreement and each amendment thereto, the Subscription Agreement and the
Memorandum and each amendment or supplement thereto as are required to be
prepared and delivered to you under this Agreement; and the expenses incident to
the execution and filing and/or recordation of the Certificate of Limited
Partnership and any Amended Certificate.
The Partnership will reimburse you for such expenses plus interest at the
prime rate quoted by The Chase Manhattan Bank over the first 24 months after
trading commences. The Partnership will pay its ongoing legal, accounting,
filing, reporting, and data processing fees which are estimated at approximately
$75,000 annually. In consideration for your entering into this Agreement, you
will act as the Partnership's commodity broker/dealer as described in the
Memorandum and be compensated as described in the Memorandum pursuant to a
Customer Agreement of even date herewith.
All of the Partnership's funds will be deposited in cash in a commodity
brokerage account with you. You will deposit the funds in segregated bank
accounts as required by the Commodity Futures Trading Commission regulations.
Such accounts do not earn interest. You will pay monthly interest to the
Partnership on 100% of the average daily equity maintained in cash in the
Partnership's brokerage accounts during each month at a 30-day Treasury xxxx
rate.
Section 7. Conditions of Your Obligations.
Your obligations under this Agreement are subject to the accuracy of and
compliance with the representations and warranties of the Partnership and the
General Partner made in Section 2 hereof and to the performance by the
Partnership and the General Partner of their obligations under this Agreement.
If any of the conditions specified in this Section 7 have not
been fulfilled when and as required by this Agreement to be fulfilled, you may
cancel this Agreement and all your obligations under it by notifying the General
Partner of such cancellation in writing or by telegram at any time at or before
any Monthly Closing and any such cancellation will be without liability or
obligation of any party to any other party except as otherwise provided in
Section 5, Section 6 and Section 9 hereof.
Section 8. Conditions of the Obligations of the Partnership and the General
Partner.
The obligations of the Partnership and the General Partner under this
Agreement are subject to the performance by you of your obligations under the
same and to the further condition that, at the initial closing, the Partnership
and the General Partner will have received your certificate stating that you
have offered the Units for sale, or solicited offers to subscribe for or buy
Units, or otherwise negotiated with any person with respect to the Units, only
in such manner and under such circumstances as are in compliance with the
securities or "blue sky" laws of the jurisdictions designated by you in
accordance with Section 5(b) hereof.
Section 9. Indemnification and Contribution.
You will indemnify and hold harmless the Partnership and the General
Partner and their officers, directors and employees, against any and all loss,
liability, claim, damage, expense, judgment or amount paid in settlement
(including reasonable attorneys' fees) with respect to statements or omissions
in the Memorandum made with respect to you or your obligations under this
Agreement made in reliance upon and in conformity with information furnished to
the General Partner by you expressly for use in the Memorandum.
Section 10. Representations, Warranties and Agreements to Survive Delivery.
All representations, warranties and agreements contained in this Agreement
or contained in certificates or opinions delivered pursuant to this Agreement
will remain operative and in full force and effect, regardless of any
investigation made by or on behalf of you or by or on behalf of the General
Partner and will survive the Monthly Closings.
Section 11. Notices and Authority to Act.
All communications herein shall be in writing and, if sent to you, will be
mailed, delivered or telegraphed and confirmed to you at:
Xxxxxxx Xxxxx Barney Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxx
or if sent to the General Partner, will be mailed, delivered or telegraphed and
confirmed to the General Partner at:
Xxxxx Xxxxxx Futures Management LLC
000 Xxxxxxxxx Xxxxxx - 7th floor
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxx
Section 12. Parties.
This Agreement will inure to the benefit of and be binding
upon you, the Partnership and the General Partner and your and their respective
successors, heirs and representatives. This Agreement and its conditions and
provisions are intended to be and are for the sole and exclusive benefit of the
parties to it and their respective successors, heirs and representatives, and
not for the benefit of any other person, firm or corporation unless expressly
stated otherwise.
Section 13. Governing Law.
This Agreement shall be governed by and construed under the laws of the
State of New York.
Section 14. Waiver.
Any party to this Agreement may waive compliance by the other with any of
the terms, provisions and conditions set forth in this Agreement.
Section 15. Entire Agreement.
This Agreement contains the entire agreement between the parties to it, and
is intended to supersede any and all prior agreements between those parties,
relating to the same subject matter.
If the foregoing is in accordance with your understanding of our agreement,
kindly sign and return to us a counterpart hereof, whereupon this instrument,
along with all counterparts, will become a binding agreement among you, the
Partnership and the General Partner, in accordance with its terms.
Sincerely,
XXXXXXX XXXXX BARNEY ORION FUTURES FUND L.P.
By Xxxxx Xxxxxx Futures Management LLC
(General Partner)
By: /s/ Xxxxx X. Xxxxx
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Xxxxx X. Xxxxx
President and Director
Confirmed, accepted and agreed to as of the date first above written.
XXXXXXX XXXXX BARNEY INC.
By: /s/ Xxxxx X. Xxxxx
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Xxxxx X. Xxxxx
xecutive Vice President
Blue Sky Survey
